Citation Nr: A25035371 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240619-452378 DATE: April 16, 2025 ORDER Special monthly compensation (SMC) under the provisions of 38 U.S.C. § 1114(p), at the intermediate rate between 38 U.S.C. § 1114(l) and (m), is granted, subject to the law and regulations governing the award of monetary benefits. A higher level of SMC, including under 38 U.S.C. § 1114(r), is denied. FINDINGS OF FACT 1. The Veteran is in receipt of SMC under 38 U.S.C. § 1114(l) and has additional single permanent disability or combinations of permanent disabilities independently ratable at 50 percent or more. 2. The most persuasive evidence does not establish that the Veteran's bilateral upper and lower extremity disabilities with balance impairment, bradykinesia, tremors, and muscle rigidity are separate and distinct from Parkinson's disease to warrant additional SMC under 38 U.S.C. § 1114(l). 3. The most persuasive evidence does not establish that the Veteran's posttraumatic stress disorder (PTSD) alone has rendered him in need of regular aid and attendance. 4. The Veteran is not in receipt of, and does not meet the criteria for, SMC at the intermediate rate between 38 U.S.C. § 1114(n) and 38 U.S.C. § 1114(o). 5. The Veteran is not in receipt of, and does not meet the criteria for, SMC under 38 U.S.C. § 1114(o) or the maximum rate authorized by 38 U.S.C. § 1114(p). CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for SMC at the intermediate rate between 38 U.S.C. § 1114(l) and (m) have been met. 38 U.S.C. § 1114(p); 38 C.F.R. § 3.350(f)(3). 2. The criteria for a higher level of SMC have not been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1959 to November 1970, to include service in Vietnam. His decorations include the Vietnam Service Medal and the Vietnam Campaign Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2024 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran timely appealed to the Board by filing a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement (NOD))) in June 2024, selecting the hearing review option. 38 C.F.R. §§ 20.201, 20.202(b)(2). In November 2024, the Veteran and his wife testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Under the hearing review option, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. §?20.302(a). The Board cannot consider (1) evidence submitted during the period after the AOJ issued the decision on appeal and before the hearing was held, or (2) evidence submitted more than 90 days after the hearing was held. 38 C.F.R. § 20.302. If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision on the Veteran's claim. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider, he may file a Supplemental Claim (VA Form 20-0995) and submit or identify that evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to a higher level of SMC The Veteran seeks to establish entitlement to a higher rate of SMC, to include at the rate set out at 38 U.S.C. § 1114(r)(1). His representative has argued that the Veteran has a need for regular aid and attendance based on more than one service-connected disability, independent of one another; that the Veteran is therefore entitled to two or more SMC(l)s; and that he therefore, in turn, meets the criteria for the level of SMC set out at 38 U.S.C.§ 1114(o), thereby triggering the application of the SMC(r)(1) rate for his aid and attendance need. See generally November 2024 Hearing Transcript; February 2025 Attorney Brief. SMC at the (l) rate is payable if, as the result of service-connected disability, the Veteran has suffered: (1) anatomical loss or loss of use of both feet; (2) anatomical loss or loss of use of one hand and one foot; (3) blindness in both eyes with visual acuity of 5/200 or less; (4) being permanently bedridden; or (5) being so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The following factors will be considered in determining whether the veteran is entitled to SMC based on need for aid and attendance: inability to dress or undress without assistance; to keep ordinarily clean and presentable without assistance; inability of claimant to feed himself or herself without assistance; inability to attend to the wants of nature; and incapacity that requires care or assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). Loss of use of a hand or foot is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with use of a suitable prosthetic appliance. The determination is made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. §§ 3.350(a)(2)(i), 4.63. SMC at the (m) rate is payable if, as the result of service-connected disability, the Veteran has suffered: (1) anatomical loss or loss of use of both hands; (2) anatomical loss or loss of use of both legs at a level, or with complications, preventing natural knee action with prosthesis in place; (3) anatomical loss or loss of use of one arm and of one leg at a level, or with complications, preventing natural elbow and knee action with prosthesis in place; (4) blindness in both eyes having only light perception; or (5) blindness in both eyes which results in being so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(m); 38 C.F.R. § 3.350(c). SMC at the (n) rate is payable if, as the result of service-connected disability, the Veteran has suffered: (1) anatomical loss or loss of use of both arms at a level, or with complications, preventing natural elbow action with prosthesis in place; (2) anatomical loss of both legs so near the hip as to prevent use of a prosthetic appliance; (3) anatomical loss of one arm and one leg so near the shoulder and hip as to prevent use of a prosthetic appliance; or (4) anatomical loss of both eyes or blindness without light perception in both eyes. 38 U.S.C. § 1114(n); 38 C.F.R. § 3.350(d). SMC at the (o) rate is payable if, as the result of service-connected disability, the Veteran has suffered: (1) anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance; (2) when two or more of the rates (l) through (n) are warranted, with no disability being considered twice; (3) bilateral deafness rated at 60 percent or more (when the hearing impairment in either one or both ears is service-connected) in combination with service-connected blindness with bilateral visual acuity 20/200 or less; or (4) service-connected total deafness in one ear or bilateral deafness rated at 40 percent or more (when the hearing impairment in either one or both ears is service-connected) in combination with service-connected blindness of both eyes having only light perception or less. 38 U.S.C. § 1114(o); 38 C.F.R. § 3.350(e)(1). The United States Court of Appeals for Veterans Claims (Court) has held that a veteran who is in receipt of SMC at a rate under 38 U.S.C. § 1114(l) through (n) cannot establish entitlement to a second rate under subsection (l) based on the need for aid and attendance, which would result in a higher payment of SMC at the rate under subsection (o), unless the need for aid and attendance arises from a disability other than that for which the veteran is already in receipt of SMC. Determinations must be based upon separate and distinct disabilities. 38 C.F.R. § 3.350(e)(3). The Court explained that such payment is prohibited because section 1114(o) prohibits a "condition from being considered twice" in subsections (l) through (n) when determining whether a veteran is entitled to a higher rate of SMC under subsection (o). Breniser v. Shinseki, 25 Vet. App. 64, 65 (2011); see also 38 C.F.R. § 3.350(e)(1)(ii). There are whole and intermediate (half) steps of increased SMC between the different subsections based on anatomical loss or loss of use of extremities, certain bilateral eye loss of vision (requiring, at a minimum, one eye having light perception only), and blindness in connection with deafness and/or loss or loss of use of a hand or foot, as well as for the presence of additional disabilities not involved in prior SMC determinations. 38 U.S.C. § 1114(p); 38 C.F.R. § 3.350(f). Further, additional disability or disabilities independently ratable at 50 percent or more warrant the assignment of the next highest half step rate. 38 C.F.R. § 3.350(f)(3). Similarly, additional disability or disabilities independently ratable at 100 percent without consideration of total disability based on individual unemployability (TDIU) warrants the assignment of the next highest whole step rate. 38 C.F.R. § 3.350(f)(4). In no event can the rate be higher than (o). The additional disability or disabilities must be separate and distinct as well as involve different anatomical segments or bodily systems from those used to achieve SMC at the (l) through (n) rate or a half step rate. 38 C.F.R. §§ 3.350(f)(3), (4). Finally, the next highest half step or whole step rate is assigned for anatomical loss or loss of use, or a combination of anatomical loss and loss of use, of three extremities. 38 C.F.R. § 3.350(f)(5). SMC at the (r) rate concerns special aid and attendance. 38 U.S.C. § 1114(r); 38 C.F.R. § 3.350(h). It is an additional allowance available when not hospitalized at government expense. 38 C.F.R. § 3.350(h). To qualify under the (r)(1) or the (r)(2) rate, receipt of the (o) rate, the maximum rate under (p), or an intermediate rate between the (n) and (o) rates plus a (k) rate is required. The need for regular aid and attendance is also required to qualify under the (r)(1) and (r)(2) rates. SMC (r)(2) applies when, as a result of a service-connected disability, a Veteran otherwise entitled to SMC at the (l) rate needs in-home personal health-care services provided by either 1) a person who is licensed to provide such services, or 2) a person who provides such services under the regular supervision of a licensed health-care professional. In this case, the Veteran is service connected for posttraumatic stress disorder (PTSD), rated as 70 percent disabling; right lower extremity balance impairment, bradykinesia, tremor, and muscle rigidity associated with Parkinson's disease, rated as 20 percent disabling from July 21, 2021, and 60 percent disabling from November 27, 2023; Parkinson's disease with right upper extremity bradykinesia, tremor, and muscle rigidity, rated as 30 percent disabling from June 27, 2017, and 50 percent disabling from November 27, 2023; left upper extremity bradykinesia, tremor, and muscle rigidity associated with Parkinson's disease, rated as 20 percent disabling from July 21, 2021, and 40 percent disabling from November 27, 2023; left lower extremity balance impairment, bradykinesia, tremor, and muscle rigidity associated with Parkinson's disease, rated as 20 percent disabling from July 21, 2021, and 40 percent disabling from November 27, 2023; difficulty chewing or swallowing associated with Parkinson's disease, rated as 10 percent disabling from July 21, 2021; speech changes, loss of automatic movements on the left and right side, loss of sense of smell, constipation, stooped posture on the left and right side, each associated with Parkinson's disease, and each rated 0 (zero) percent disabling from July 27, 2023; migraine headaches, rated 0 percent disabling from July 29, 2011; and erectile dysfunction, rated 0 percent from July 27, 2023. Further, the Veteran is receiving SMC(l) on account of being so helpless as to be in need of regular aid and attendance from November 27, 2023; SMC under 38 U.S.C. § 1114(s) due to being in receipt of a 100 percent disability rating for residuals of Parkinson's disease and a separate disability of PTSD independently ratable at 60 percent or more as of July 21, 2021; and SMC(k) on account of loss of use of a creative organ (erectile dysfunction) from November 27, 2023. The Board notes that in the April 2024 rating decision that granted entitlement to SMC(l), the AOJ did not specify which disability the award was based upon. In that regard, the AOJ cited to, and briefly summarized, a November 2023 VA Form 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance and a January 2024 VA Parkinson's disease examination to support the award. Viewed in context, the award appears to have been based on the residuals of Parkinson's disease in general. VA treatment records reflect that the Veteran was approved for VA's Program of Comprehensive Assistance for Family Caregivers (PCAFC). See, e.g., January 2021 CSP PCAFC Application Intake; July 2022 VA treatment record. The Veteran submitted a November 2023 VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) completed by his VA physician. The physician indicated that the relevant service-connected diagnoses that the equated to the level of assistance described in the report included Parkinson's disease with tremors and postural instability. As for PTSD, the physician indicated that the only significant symptom was nightmares. Regarding the Veteran's gait, the Veteran was noted to need assistance with a rollator. The Veteran was found to be confined to bed for 21 hours a day. The physician noted the Veteran required daily assistance with bathing/showering, eating, dressing, ambulating, hygiene, toileting, medication management, transferring, preparing meals, housekeeping, and laundry. The examiner also opined that the Veteran needed nursing home care. The physician went on to describe the Veteran as obese with a stooped posture, tremulous extremities, chronically ill, and appearing older than his stated age. As to the upper extremities, the physician noted that the Veteran could not elevate either arm above the horizon; he had poor grip strength; he was unable to shave or button clothing; and he could not feed himself. Regarding lower extremity restrictions, the Veteran needed assistance to stand and walk and his range of motion was bilaterally limited due to pain. As for restrictions of the spine, trunk, and neck, it was noted that he was unable to bend down due to stiffness and pain of the neck and low back. Additionally, movement, upright posture, prolonged sitting, and movement of his extremities all worsened his constant baseline pain. Regarding all other pathology that affected the Veteran's ability to perform self-care, ambulate, or travel beyond the premises of the home, or, if hospitalized, beyond the ward or clinical area, the physician commented that the Veteran had poor balance, cognitive deficits from dementia, bowel incontinence, and muscle spasms. The examiner indicated that the Veteran left his home 2 to 3 days a week for medical appointments only. On VA Parkinson's disease examination in January 2024, the Veteran had stooped posture; moderate balance impairment; mild bradykinesia; moderate tremors in the right upper extremity; mild tremors in the left upper extremity; mild tremors in the lower extremities; mild depression; and mild muscle rigidity. The examiner further noted that the Veteran had partial loss of sense of smell; mild sleep disturbance; mild difficulty chewing/swallowing; mild constipation; mild sexual dysfunction; and worsening anxiety and tremors. The examiner opined that the Veteran's Parkinson's disease resulted in imbalance requiring the use of a rollator walker with a seat. He also required assistance with activities of daily living, such as bathing and dressing due to imbalance. The examiner noted that the Veteran's imbalance made it difficult for him to stand or walk for prolonged periods. At the Board hearing in November 2024, the Veteran and his wife testified that she provided him 24/7 care. She prepared his food and helped him eat; bathed and cleaned him; applied creams and lotions; shaved and gave him haircuts; and assisted with toileting. The Veteran testified to being unable to stand for more than two minutes at a time and walking more than a few feet at a time. He stated that he always used a walker when ambulating due to balance problems. His wife drove him to appointments and pushed him in a wheelchair from the car to the appointment. He testified to fine motor skills problems, such as pulling up his pants, using utensils, and an inability to use a computer or phone because he could not push the right buttons. In response to whether the Veteran did not want to be around other people or if he was having anxiety problems, the Veteran's wife acknowledged that he was embarrassed or ashamed of himself, but that he did okay, and everybody loved him. The Veteran reported that stressful situations, such as appointments, could cause anxiety that increased his tremors. Within the 90-day evidentiary window following the November 2024 Board hearing, the Veteran submitted a functional assessment for aid and attendance performed in November 2024. It is unclear whether this was completed by a medical professional or the Veteran. The report notes that he was found to have difficulty cutting food and handling utensils due to tremors and Parkinson's disease; he required caretaker assistance for shaving, cutting hair, and bathing/showering; he needed substantial/maximal assistance with upper body dressing, was dependent with lower body dressing, and was dependent with putting on and taking off footwear; he needed substantial/maximal assistance with toileting because he had problems with water retention and bowel movements and often required help cleaning after bowel movements and pulling up his diaper and pants; he was dependent on the use of a walker to move around the house or to appointments; he needed substantial/maximal assistance with rolling left and right, lying to sitting, and sitting to standing; and he was dependent for chair/bed-to-chair transfer. Out-of-home situations and appointments increased his anxiety, which increased tremors and back pain. It was noted that his wife/caretaker was his "travel buddy" and kept him calm. The Veteran was also noted to be homebound and unable to stand and carry items. In February 2025, during the permissible evidentiary window, the Veteran's representative submitted a medical opinion from Dr. M.R. in support of his claim. Dr. M.R. reviewed the record and discussed the symptoms caused by the Veteran's service-connected bilateral upper and lower extremity disabilities that required aid and attendance. For the upper extremities, she opined that the tremor, muscle rigidity, and slowed movement caused an inability to complete many activities of daily living (ADLs) and instrumental activities of daily living (IADLs). She noted that the ADLs/IADLs that were affected by the upper extremities included the inability to eat or prepare food, groom, bathe, independently use the toilet, roll over, sit up, drive, or shop for groceries. As to the lower extremities, Dr. M.R. opined that the ADLs/IADLs that were affected included the inability to prepare food, groom, bathe, use the toilet independently, roll over, sit up, drive, ambulate without a walker, get dressed, put on footwear, or shop for groceries. The Veteran's current entitlement to SMC based on the need for regular aid and attendance, under 38 U.S.C. § 1114(l), is based on his service-connected Parkinson's disease manifestations. That, coupled with his additional, separate and distinct disabilities rated at 50 percent or greater (PTSD), meets the requirement for a higher level of SMC at an intermediate rate above the rate associated with the award of SMC under 38 U.S.C. § 1114(l). See 38 U.S.C. § 1114(p); 38 C.F.R. § 3.350(f)(3); see also Barry v. McDonough, 101 F.4th 1348, 1351 (Fed. Cir. 2024). Accordingly, the Board finds that entitlement to a higher level of SMC at the intermediate rate between 38 U.S.C. § 1114(l) and (m), pursuant to 38 U.S.C. § 1114(p) and 38 C.F.R. § 3.350(f)(3), is warranted. The Board further finds, however, that the Veteran is not entitled to SMC(r)(1). As noted, to be eligible for entitlement, a veteran must be in need of regular aid and attendance under § 1114(l) and also be entitled to compensation authorized under either (o) or at the maximum rate authorized by (p); or the veteran must be need of regular aid and attendance under § 1114(l), be entitled to the intermediate SMC rate between §§ 1114(n) and (o), and also entitled to compensation at the § 1114(k) rate. The Veteran's representative has argued that the Veteran needs aid and attendance based on more than one service-connected disability. Specifically, he contends that each of the disabilities of the Veteran's service-connected upper and lower extremities, by themselves, warrants a separate award of SMC(l). See generally November 2024 Hearing Transcript; February 2025 Attorney Brief. In addition, the representative argues that the diagnostic codes for the extremities are different for each condition and in different extremities of the body; therefore, they cannot be considered twice. Id. The Board disagrees. In this regard, the Board notes that the Veteran's award of SMC(l) is based on a combination of his service-connected Parkinson's disease residuals, without distinction. Because the Veteran was awarded aid and attendance based on his Parkinson's disease, the additional qualifying disability must have resulted from pathology other than that requiring the aid and attendance. As reflected above, the Veteran is currently assigned separate ratings under Diagnostic Codes 8514 and 8520 for the upper and lower extremities, respectively. These ratings are for balance impairment, bradykinesia, tremors, and muscle rigidity, which have been recognized by the AOJ as manifestations of Parkinson's disease. See August 2017 and August 2022 rating decisions. Disabilities evaluated under Diagnostic Codes 8514 and 8520 are rated as neurological conditions just as is Parkinson's disease under Diagnostic Code 8004. See 38 C.F.R. § 4.124a. As such, these disabilities are not separate and distinct. The Veteran's representative has also argued that the Veteran's PTSD, alone, supports a finding of the need for regular aid and attendance. The Board acknowledges there is evidence the Veteran's PTSD contributes to his tremors when he has increased anxiety, particularly during stressful situations such as appointments. See November 2024 Hearing Transcript. There is also evidence the Veteran's PTSD is productive of occupational and social impairment with reduced reliability and productivity, with symptoms that included depressed mood; anxiety; panic attacks; chronic sleep impairment; flattened affect; impaired judgment; impaired impulse control; suicidal ideation; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; and inability to establish and maintain relationships. See August 2013 VA PTSD examination. Nevertheless, the Veteran's wife testified that he was still okay around others, despite being embarrassed. Furthermore, the evidence, including evidence submitted by the Veteran, persuasively establishes that the Parkinson's disease residuals were the predominant cause of the Veteran's difficulties with ADLs/IADLs and need for regular aid and attendance. See November 2023 VA 21-2680; January 2024 VA Parkinson's disease examination; November 2024 Functional Assessment; February 2025 report from Dr. M.R. While the Veteran is clearly very severely disabled due to his PTSD, he is in receipt of a compensable rating for those symptoms, and there is no persuasive evidence establishing that his PTSD, considered alone, has rendered him in need of regular aid and attendance. While SMC under SMC(l) is warranted with respect to Parkinson's disease, the Veteran does not contend, and the medical evidence does not establish, that the aid and attendance criteria have been met for any other disability. Additionally, the Veteran has not shown that he is entitled to two or more of the rates provided in subsections (l) through (n), nor does he qualify under (o). The Veteran is not service connected for, has not asserted service connection for, and the medical evidence does not otherwise establish that the Veteran has suffered from, amputation; anatomical loss of any extremity with factors that prevent the use of prosthetic appliances; blindness in both eyes or visual acuity of 5/200 or less bilaterally; or total deafness in one ear or bilateral deafness rated at 40 percent or more. 38 U.S.C. §§ 1114(l)-(o); 38 C.F.R. §§ 3.350(a)(2), (b)-(e). Simply put, he does not qualify for two or more of the rates in (l) through (n), no condition being considered twice in the determination. To the extent the Veteran's award of SMC under § 1114(p), granted in this decision, warrants analysis for compensation under § 1114(r)(1), the Board finds he is not entitled to the maximum rate authorized by 38 U.S.C. § 1114(p) (i.e., the (o) rate), and he is not entitled to the intermediate rate between (n) and (o). As noted above, he is compensated pursuant to (p) at the intermediate rates between 38 U.S.C. § 1114, subsections (l) and (m). However, the maximum allowable rate under § 1114(p) is the same rate allowable under (o), which the Veteran does not meet. And, as discussed above, the Veteran does not qualify for any of the rates provided in 38 U.S.C. §§ 1114(n) through (o), and therefore cannot be entitled to the maximum rate authorized by (p). Additionally, while the Veteran is compensated pursuant to SMC(k) due to the loss of use of a creative organ, he does not meet the criteria for entitlement to SMC under 38 U.S.C. §§ 1114(m), (n), or (o), as discussed above, and therefore is not entitled to the intermediate rate between (n) and (o), so as to warrant entitlement under 38 U.S.C. § 1114(r1). While the Veteran is clearly severely disabled due to his service-connected disabilities, the criteria for SMC under 38 U.S.C. § 1114 (r)(1) are specific and the evidence does not show that they have been satisfied. Accordingly, while entitlement to additional SMC at the intermediate rate between 38 U.S.C. § 1114(l) and (m), pursuant to 38 U.S.C. § 1114(p), is warranted, entitlement to additional SMC under 38 U.S.C. §§ 1114(r1) is not warranted. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kettler, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.